The Much Vaunted Guardrails Are Failing

Unless America’s leading institutions start acting accordingly, how can we expect enough people to believe the danger to democracy and fundamental rights is really all that severe?

iStock / Credit: Douglas Rissing

Most of you who are reading this probably remember where you were on January 6, 2021 – how you heard about what was happening in Washington, DC, how you felt watching the images of a violent assault on the Capitol. Imagine someone had told you that evening, or maybe the morning after, that over three years later, Donald Trump, the man at the center of an unprecedented attempted coup, still would not have faced any real consequences – that, in fact, he would be almost guaranteed to escape any serious legal and constitutional consequences before the next presidential election in which he would be, once again, the leader of the Republican Party?

I’m assuming most of you would have asked “What on earth went wrong?” – and concluded some variation of “Well, I guess we are f*cked then.” That certainly would have been my reaction. Not even necessarily because such an outcome was unthinkable: It certainly shouldn’t have been for anyone who had been paying attention to what had been happening on the American Right. But because it would have been – and still is! – shocking nonetheless. Shocking, but not necessarily surprising. The basic mood in the era of Trump.

This scenario of almost complete impunity is now by far the most likely outcome after two recent Supreme Court decisions. First, the Court accepted to hear Trump’s case that he deserves blanket immunity from criminal prosecution for anything he did as a president, specifically anything to do with January 6. And the justices will take their sweet time entertaining that outlandish notion: Hearings are scheduled for April, which means we shouldn’t expect a decision before the end of the current term in early summer. This means that even if/when Trump’s claim is ultimately rejected, prosecution will have been delayed long enough so that an actual trial will not come to a conclusion in time before the November election.

Then on Tuesday, in Anderson v. Trump, the Court unanimously overturned the decision by the Colorado Supreme Court to enforce the constitution and disqualify Trump from future office under the insurrection clause in Section 3 of the 14^th amendment to the constitution. The Court ruled that disqualification of candidates running for federal office can only happen through Congressional action – and we know that’s not coming, as one of the two major parties is fully devoted to protecting Trump and insulating him from accountability. The insurrection clause has effectively been nullified.

Beyond the courts, the Republican Party has always used its power in Congress to make sure that Trump would not face any political consequences. Meanwhile, the broader Biden coalition has been defined by a lot of infighting over whether the defense of democracy and fundamental rights against a radicalizing authoritarian assault should even play a prominent role for the Democratic Party, with lots of influential people flocking to the “popularist” banner and declaring all that as just silly “culture wars” distraction best to be ignored.  

As a result of all of this, we are now staring at a situation in which Trump is going to be the Republican candidate on the ballot, the presidential election in November is going to be a very, very close call, and because of America’s arcane election rules, the guy who wants to abolish democratic self-government doesn’t even need a majority of the vote to get back to power. Trump could not be clearer about his authoritarian desires, explicitly declaring his intent to establish a vindictive autocracy as soon as he’s back in the White House. And the American Right has come up with detailed plans for how to establish a much more efficient, more ruthless rightwing regime the next time around – plans for how to take over and transform American government into a machine that serves only two purposes: Autocratic revenge against the “woke” enemy and the imposition of a reactionary vision for society against the will of the majority.

We really shouldn’t be here, but we are. Under these circumstances, the election in November is effectively a referendum on whether the experiment of multiracial, pluralistic democracy – however flawed it may still be at this current moment – should be allowed to continue or be aborted entirely. The result of this referendum will depend primarily on whether or not enough people accept the fact that those are stakes. Right now, that is looking like a dicey proposition.

Not a “normal” election, no more “politics as usual”

One of the key challenges since the start of the Trump era has been to communicate effectively to the American public that something other than “politics as usual” is going on, that the threat of authoritarianism – that is embodied, but not caused by Trump – is real. If it was actually as bad as people on “the Left” say, if the situation was as dire and dangerous as democracy scholars like myself claim, wouldn’t that be reflected more clearly in the way the leading institutions of American life act, especially those specifically tasked with upholding democracy and the rule of law?

I have written about this several times before, because it is something that strikes me as so fundamentally important: The experiences of most Americans, even those who follow politics at least a little bit, tend to be shaped not just by the latest political upheavals, but by the normal challenges of everyday life. People have to go to work, take care of their families, they suffer or celebrate with their favorite sports teams. It would be unrealistic and unfair to denounce these as just illusions of normalcy. In a lot of ways, things really are “normal,” in the sense that most of us have little choice but to continue the routines that dominate our daily lives, even in the midst of a political crisis around us. We have to function, we compartmentalize.

We can complain about how too many people are complacent. I do it all the time. And it is only fair to note that *not* taking the political situation seriously is a luxury only those can afford who are not immediately threatened by the anti-democratic radicalization of the Republican Party. It is a privilege not available to the women who are dealing with the cruel consequences of their bodily autonomy being denied – or the marginalized, vulnerable groups who are the key targets of the reactionary offensive against multiracial pluralism.

But let’s not assume that everyone who isn’t already grasping the acute danger, and hasn’t developed the same sense of alarm that I think is fully warranted, just doesn’t care. We all grind through our normal routines, we have to – unless something disrupts “normalcy.” That, to me, is the crucial challenge: How do we pierce that sense of “normalcy”? How do we create moments of meaningful disruption? How can we convince enough people that democracy itself – not merely in a formalistic way, but with all the fundamental rights and demands to respect pluralism by which it should be defined – is on the ballot in November?

Right now, we are failing that task. Few people are actually aware of what the Right has publicly vowed to do to America the next time they get the chance, or of Trump’s most aggressive authoritarian threats. And more generally, Americans tend to see the two major parties as equally extreme in ideological terms – if anything, the trend is for the Democratic Party, not the party of Trump, to be seen as more extreme.

There are many reasons for why that is the case, starting with an enormously successful and influential rightwing media and propaganda machine. There is also the mainstream media’s addiction to a “both sides” framework that allows them to achieve “balance”: It is the hallmark of a kind of journalism that prizes “neutrality” (disastrously defined as keeping equidistance from either side) over accuracy. That type of performative centrism often goes hand in hand with certain reactionary, or at least anti-“woke” sensibilities and tendencies that are not confined to just the Republican Party. Just look at the armada of pundits from the center-right to the (self-identifying) center-left that reacted to the attempts to disqualify Trump from holding future office by casting doubt on whether January 6 *really* qualified as an insurrection and engaged in silly wordplay and unbelievably disingenuous sophistry in defense of the bad-faith premise that the real problem was actually liberal Trump derangement syndrome. Or look at a mainstream reporting apparatus that presents Mark Robinson, the man the North Carolina Republican Party has just selected as their gubernatorial candidate – a despicable bigot who aggressively hates queer people, a misogynist who doesn’t think women should be allowed to vote, an extremist who denies the Holocaust, climate change, and the result of the 2020 election – as a “fiery outsider eager to dice into the culture war.”

The Supreme Court epitomizes a much larger problem

The Supreme Court’s decision in Anderson v. Trump is going to exacerbate this pervasive tendency to dismiss the idea that the country really is facing an existential threat from the Right that is getting perilously close to re-taking power. Yes, underneath the 9-0 ruling that states cannot enforce Section 3 is a significant disagreement between the reactionary majority and the liberal minority. The liberal justices disagreed with parts of the majority’s reasoning, arguing the reactionaries went too far in narrowing the acceptable path of enforcing Section 3 to a very specific act of Congress. But for the vast majority of people, this decision will register as a unanimous statement by the Supreme Court and a strong rejection of misled attempts to get rid of Trump. And they won’t really be wrong either: The liberals on the Court didn’t even deliver a proper dissent. Even if they thought this was perhaps not the right path to tackle the authoritarian onslaught: They missed a chance to tell America – the part of America that would listen to their opinion, regardless of what the reactionary majority decided – that January 6 was indeed an insurrection, that Trump attempted a coup, that he shouldn’t be allowed to hold office again. Instead, most people will file this decision as yet more evidence that whatever Trump’s faults and transgressions, they don’t amount to something that merits this kind of unprecedented response, that such drastic measures would be too extreme.

Once again, we cannot blame people for thinking this is the main takeaway when that is exactly what a staple of pundits with mainstream credibility and big platforms are telling the world. The idea that this Supreme Court ruling proves beyond doubt that those who derided the attempt to disqualify Trump were right – not just right in predicting the decision, but right on substance and in declaring there’s nothing to be done but “let the ballot box decide” – is ridiculous. But influential opinionists are trying their best to make that message stick, as they are increasingly dedicated to anti-anti-Trumpism and telling the world how much they are disgusted by any “liberal” attempt to hold Trump accountable, how silly all this supposedly misguided, alarmist liberal hysteria is.

It's remarkable how backwards all this “let the people decide” talk is. The people decided in November 2020: Trump lost, and attempted an auto-coup in response. That is the sole reason why the insurrection clause came into play at all. January 6 was the anti-democratic part. Moreover, we already know what Trump’s reaction to losing the next election would be. The only election result he and his enablers on the Right are willing to accept as legitimate is one that puts them in power.

Trump’s real superpower

This has always been Trump’s secret power: Somehow, a lot of people – including many of those whose job it is to shape the nation’s opinion by presenting theirs in the country’s leading papers – steadfastly refuse to take his most radical, most aggressive announcements seriously, while at the same time insisting that Trump is a kind of political superweapon that must not be openly challenged. There are a lot of factors explaining why Trump is treated as such an exceptional force: There is an element of white innocence, as it allows for an apologist tale in which the people who vote for him are merely the victims of a genius demagogue who has put a devious spell on them. It is part of a self-exculpatory narrative that is attractive to elites who have not been willing and/or able to stop Trump’s rise: What could they have possibly done against such an outlandishly powerful foe? And there is volkish ideology underneath all that, according to which Trump channels and speaks for “real (read: reactionary white Christian patriarchal) America,” the Volk, and therefore he must be given wide latitude, as the will of the true people, which Trump supposedly embodies, must not be impeded.

The result is that almost no one ever brings the hammer down on Trump. What the American political system has offered so far in response to the Trumpian threat is, at best, a whole lot of handwringing: Since January 6, the discussion has disproportionally focused on the risk of doing something while often neglecting the considerable dangers of doing nothing. And more often, still, the system has been actively complicit and helped to shield Trump from any real accountability.

The guardrails are failing. They are failing not only to hold Trump accountable directly, but also, absent any serious legal and political consequences, to at least tell the people how exceptionally dangerous Trump and those who are fueling, enabling, and supporting him are. If someone assumes that this is still a country with functioning institutions, then it’s only logical for them to conclude that Trump walking free means his transgressions can’t be that bad. At some point, it becomes really hard to expect people to break through their routines and actively defend democracy, as is necessary in a situation of crisis, if the institutions we ask them to trust shy away from doing their part – if they instead continue to signal “normalcy,” that politics as usual is still an option or, at the very least, that exceptional, unprecedented measures would be “too extreme.”

Three different elections in November

To a significant degree, elections are decided by what people believe the question is they are being asked to decide on with their vote. Different questions – or framings – activate different parts of our political, social, and cultural identities, and whichever is the most salient at a given moment will shape our voting choice. Broadly speaking, there are three very different frameworks for the next presidential election, three very distinct questions:

First, forces on the Right want people to believe the question is whether or not it’s time to stop the “anti-American” onslaught from a “woke,” totalitarian Left. If they succeed in implementing that framing for enough people, Trump wins. That is how far-right regimes have usually been able to rise to power: With enough people on the Center-Right and establishment conservatives holding their noses and making common cause with rightwing extremists because they saw the “radical Left” as a more pressing threat.

Secondly, the default assumption of most people in America is that this is just a “normal” presidential election between two very flawed, very unpopular candidates. If that is the dominant framing in November, Trump, again, has a very good chance of winning. As poll after poll finds right now, there is a lot of frustration with the status quo out there, for various and often entirely justifiable reasons. In a “normal” election, that frustration is directed more towards the incumbent.

Finally, there is the question that I believe should override all else in American politics right now: Should the democratic experiment be continued and America be pushed towards realizing its promise of egalitarian multiracial pluralism – or should a radicalizing minority of white reactionaries be allowed to impose its vision on the country with the help of a vindictive autocrat in power? If that is the type of referendum we are having in November, Trump loses.

But how can we expect voters to accept this idea if the institutions that are tasked with upholding democracy and defending the fundamental rights of all people cannot consistently bring themselves to signal that those are indeed the stakes?